LE (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), by two applicants. The first applicant sought to be employed as a ‘Café or Restaurant Manager’ under the standard business sponsor stream, with a nomination made by Elnart Pty Ltd. The second applicant was a family member of the first. The Administrative Appeals Tribunal (the Tribunal) was required to review the decision of the Department of Home Affairs to refuse the visa applications.

The primary legal issue before the Tribunal was whether the first applicant met the requirements of subclause 457.223(4)(a) of the Migration Regulations 1994. This subclause mandates that for the standard business sponsor stream, there must be an approved nomination of an occupation relating to the applicant by a standard business sponsor, and this approval must not have ceased. The Tribunal also considered whether the second applicant's visa application should be reconsidered, contingent on the first applicant meeting the primary criteria.

The Tribunal found that Elnart Pty Ltd’s nomination application in respect of the first applicant had been refused by the Department, and this decision was affirmed by the Tribunal on 20 October 2020. Consequently, Tribunal and Departmental records indicated that the first applicant was not the subject of an approved nomination by a standard business sponsor. As the requirement under cl 457.223(4)(a) was not met, the Tribunal concluded that the requirements for the standard business sponsor stream had not been satisfied. Given this finding, and the absence of claims or evidence relating to other streams, the Tribunal determined that the second applicant's visa application should not be reconsidered, as they were not a member of the family unit of a person who had met the primary criteria for the visa.

The Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to either applicant.